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What questions can an employer ask during my interview?

Have you attended an interview recently were you were asked a lot of questions about your disability? Did the prospective employer want to know about any previous claims you have made for workers’ compensation? Those questions might be illegal.

What questions can an employer ask during my interview?

Under the Fair Employment and Housing Act (FEHA), employers must not ask certain questions in an interview. They cannot ask interview questions designed to reveal the existence or severity of a disability. This includes questions asking whether you have had any prior compensation claims.

The law prohibits these questions to protect applicants and employees from possible bias. An employer may not want to offer a job to an applicant that has a disability and will need some accommodation. Doing this is against the law though.

If you are in an interview where these off-limit questions are asked, you may have a claim for employment discrimination. This would especially be the case where you were denied the job in circumstances that suggest the decision was made due to your disability.

If you suspect that you were denied an employment opportunity because of the answers to these off-limit questions, contact us at Eldessouky Law immediately. Every person deserves a fair employment opportunity and it is our job to see that you are not deprived of that right.

This article explains what questions are illegal in an interview. It addresses what you can do when asked these questions and how a California employment discrimination attorney can help.

What amounts to an illegal interview question?

Although it sounds straightforward, it’s not always clear what amounts to an illegal interview question. In some cases, the law is very clear on what questions are off-limits.

For instance, California’s Code of Regulations 2 Cal. Code Regs. §7294.0(b)(2), states that employers cannot ask questions related to the existence or severity of a disability. They cannot seek information about prior workers’ compensation claims or industrial injuries.

California’s Department of Fair Employment and Housing (DFEH) also states that: “Employers should use caution before requesting information about applicants’ or employees’ residences, running applicant credit checks according to Labor Code 1024.5, or conducting background checks“.

But these are not the only questions that are off-limits in an interview. While it is not exhaustive, this list shows some areas that an employer should not ask questions about:

  • Race, color or national origin
  • Whether you own a home or are living with someone
  • Religion
  • Sex, gender identity, or sexual orientation
  • Whether you have ever been arrested
  • Availability to work based on your religion
  • Pregnancy status
  • Whether you have a prior conviction
  • Disability
  • Your financial solvency. This includes whether you have a bank account, own a home, ever had your wages garnished or have ever declared bankruptcy
  • Age or genetic information
  • What year you graduated from high school
  • Your family status
  • Your height or weight
  • Your marital status
  • Citizenship
  • Marital status or Number of children
  • Whether you have a driver’s license and what your driver’s license number is.

Some of these questions seem harmless, but they are considered illegal because they can harm you. They can result in your prospective employer making a biased employment decision.

While the law does not bar ALL questions related to these areas, they are not permitted if used for a discriminatory purpose. According to the DFEH, they will be considered illegal if they have a discriminatory impact. They are also illegal if they are not sufficiently related to a business purpose.

Also, employers cannot selectively ask these questions. Even if they have good reason for requiring that information, the requests should be fair and directed to all applicants.

What interview questions can my employer ask?

Topics bordering on job-related functions are perfectly safe interview questions. According to FEHA, your employer can ask about your knowledge or abilities relating to a specific job function. Government Code §12940(e)(2).

Examples of questions related to your ability to carry out job-related functions include:

  • What hours and days you can work and the specific times
  • Whether you have responsibilities other than work that could interfere with specific job requirements such as travelling
  • Questions about weight or height are only acceptable if they are requirements for you to do your job well
  • Marital status, number and age of dependents and age of your spouse are only acceptable after they have hired you. Even then it should be ONLY for insurance and tax purposes.
  • Questions about your citizenship and proof of citizenship status are only acceptable after you have been hired.
  • They can ask questions about your educational records, list of references and details of people willing to provide professional and/or character references for you.
  • Questions about disabilities are only acceptable if they directly affect your ability to do your job such as if you can lift a 25lbs weight or stand for 5 hours at a stretch without needing special consideration.
  • Questions about your age are only accepted after you have been hired, and this should only be to prove that you are above 18 years of age.
  • The name and address of your contact to be notified in case of an emergency can only be requested after employing you.
  • Questions about your driver’s license should only be asked if the position you are applying for requires you to have one.

FEHA further states that if you make a request for accommodation, your employer can respond with questions relating to that request. This may include questions about what accommodation you need and for how long you may need it.

In line with your request for accommodation, your employer may also require you to provide “sufficient information” to evaluate if you have a disability or need accommodation.

They cannot go fishing for information though. According to the Equal Employment Opportunity Commission (EEOC), you have provided sufficient information of your documentation:

  • Describes the nature, severity and duration of your impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits your ability to perform the activities.
  • Substantiates why you need reasonable accommodation you requested.

What do I do if my prospective employer asks an illegal question?

Remember that it is not in all cases that employers ask prohibited questions out of a discriminatory intent. If situations were different, most of the interview questions termed illegal would just be the questioner trying to get to know you better. With that in mind, when you are asked illegal questions during a job interview, try to consider:

  • The intent of the interviewer
  • Their reaction if you choose not to answer
  • How badly you want the job

Most of the inappropriate questions listed above are direct questions and recruiters are expected to know that these questions are illegal. However, this is not always the case. Sometimes, an interviewer can slip or might even have a genuine interest in making small talk in an attempt to put you at ease. So, when you have an illegal question thrown at you, you should first try to understand the intent behind the question.

Know that you don’t have to answer any question you don’t feel comfortable answering. Just sidestep the question as diplomatically as possible. You can do this without fear of reprisal because even in a casual situation, the interviewer is on shaky ground.

If you do answer, you can give a brief response to the question. If the interviewer presses for more details, politely point out to them that you do not see how their questions relate to the position in question. If the motive behind the question is not malicious, the interviewer should be able to explain the reason for the question.

Another thing you can do is to address the “question behind the question”. Some of these questions are asked because they need to be sure that you are a good fit for the company. So, when you are asked a question that you are not comfortable answering, just assure your interviewer that you can do your job without fail.

If you are pressed to answer an illegal question, answer truthfully, but make sure you write down the question as soon as you leave the interview. If the question revealed a protected status and you were turned down, you may have a potential discrimination claim.

Next steps: Reach out to an employment lawyer

If you have been a victim of discrimination as a result of illegal questions asked during your employment interview, you should get the help of a discrimination lawyer.

At Eldessouky Law, our employment discrimination attorneys will work to help safeguard your rights and ensure that you receive proper redress for any breach of your rights. Contact us on 714-409-8991 to set up a free case review.

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